Supreme Court sports gambling decision is victory for federalism. What about sanctuary cities?

Today the Supreme Court ruled that a federal law barring states from legalizing sports betting violates the “anti-commandeering doctrine.” That doctrine is part of the Supreme Court’s federalism jurisprudence. It holds that the federal government cannot “commandeer” the states to enforce federal laws or policies.

The decision was 7-2 on the core constitutional question of whether the federal law in question — the Professional and Amateur Sports Protection Act (PASPA) — violates the anti-commandeering principle. Liberal Justices Kagan and Breyer joined with Chief Justice Roberts and Justices Kennedy, Thomas, Alito, and Gorsuch on this question. Breyer parted ways with the majority on a separate issue in the case which led him to reach a different result on the disposition of the case.

Justice Alito wrote the majority opinion. That’s almost always a good thing.

Justice Alito explained that that the “anticommandeering doctrine is simply the expression of a fundamental structural decision incorporated into the Constitution” – “the decision to withhold from Congress the power to issue orders directly to the States.” A law like PASPA violates this principle because it orders states not to legalize sports betting. Thus, “it unequivocally dictates what a state legislature may and may not do.” Said Justice Alito:

It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.

Alito continued:

Neither [the sports leagues] nor the United States contends that Congress can compel a State to enact legislation, but they say that prohibiting a State from enacting new laws is another matter. . . .

This distinction is empty. . .The basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event.

Both noted that the decision has implications for a range of federalism cases, including ones involving marijuana and sanctuary cities. Supporters of sanctuary cities invoke the anti-commandeering doctrine in arguing that they cannot be coerced into helping to enforce federal immigration law — e.g. by the conditioning of federal funding on such cooperation. Justices Breyer and Kagan may have had sanctuary city litigation in mind when they signed on to Justice Alito’s opinion.

My sense is that it may well be possible, in complete good faith, to distinguish this sports-betting case from sanctuary city cases from the standpoint of federalism/anti-commandeering. For example, attaching strings to the grant of federal funds to states is not the same thing as barring states from legalizing an activity. No direct order to the state is issued in the former case. No federal officers are effectively installed in the legislative chamber to tell states what they can and cannot do. States have a choice.

But I don’t mean to deny that at least four Justices, and possibly more, may find that today’s sports-betting decision supports the legal position of sanctuary jurisdictions. Nor am I prepared, at this juncture, to say with confidence whether or to what extent I think such support is present.